Legal Fiction

"It's a difficult thing to be right all the time." Rummy, 5/9/2006

Sunday, February 29, 2004

THE FUTILITY OF LOGIC - Today's NY Times

Today's Sunday NY Times provides a perfect example of why logical arguments for or against gay marriage are useless. Logic is adding nothing -- all rational arguments for or against gay marriage are merely justifying pre-existing subjective views of homosexuality. In other words, logical arguments are nothing more than window-dressing for one's gut-level view of homosexuality. Let's start with the futility of the Left's logical arguments.

Here's the denouement of the epic drama over gay marriage. It's going to happen, it's going to happen within a generation. . . "An act as unremarkable as getting a wedding license" has been transformed by the people embracing it, much as the unremarkable act of sitting at a Formica lunch counter was transformed by an act of civil disobedience at a Woolworth's in North Carolina 44 years ago this month.

That argument only works if you assume that homosexuality is not immoral (as I certainly do not). It adds nothing to the logical debate. The important logical leap is that gay marriage is equivalent to the civil rights struggles of the 50s and 60s. I agree, but based on my own subjective views of homosexuality. Many do not.

Now let's look at the Right's views in a column by Lisa Schiffren (on the NYT op-ed page):

Whether you favor gay marriage or not, it should be a concern when judges and officials decide to circumvent the democratic process on a core issue.

No no no no. I'm so sick of this argument. It too assumes the correctness of its view of homosexuality. For example, I think we all agree with "activist" judges who ended segregation, and segregation had overwhelming majority support in the South. So, to say that judges are "activist" is only to say that you disagree with the merits of their decision. Again, this argument adds nothing to the logical debate because it pre-assumes that homosexuality is immoral and not a fundamental right worthy of protection against majority tyranny. She also writes:

It is society's basic institution for raising children. . . . It is how we protect children from the pain and frequent poverty of fatherlessness and family breakdown. Like private property and the rule of law, marriage is one of a few institution that hold up democracy.

Again, that's a great argument, if you start from the assumption that homosexual marriage can't achieve these same goals. It's important that everyone understands the weaknesses of this line of attack. This is not a logically strong argument in favor of the FMA. It only reaffirms pre-existing views. Gay marriage only undermines marriage if you think homosexuality is a bad thing in the first place - so, the "undermining marriage" argument adds nothing. The logic is: (1) gay marriage cannot achieve these goals b/c gay marriage is bad; so therefore (2) it undermines marriage. Step 2 assumes that Step 1 is correct. But too many arguments that I'm hearing are proceeding directly to Step 2.

I know I've been harping on this, and I may take a break from the FMA for a while, largely because I find the logical arguments so pointless. The key for progressives is to get people to change their "first principles" - or to change their pre-existing subjective views. This means appealing to people's emotions, not their logic (pathos over logos). Explain that gay marriage is not a battle of abstract morality, it's a battle for custody rights. It's a battle for visitation rights. It's a battle to keep children with their parents - something that all parents can sympathize with. It's a battle of property rights. It's a battle of privacy - Rosie O Donnell's private conversations and emails were made public (in her recent trial regarding her magazine) because there was no spousal privilege between Rosie and her partner. When people start talking abstractly about gays and immorality, progressives should make the debate more concrete. Ask them if they have a gay neighbor or friend or family member. Then ask them if that person should have the right to visit their children in the case that partners split up or separate. If they agree, then they are in favor of civil unions, which I cannot distinguish from the word "marriage." Call it marriage, call it "civil union," call it a "Satan-convenant." I don't really give a shit, so long as parents have the right to visit their children after a break-up.

Schiffren said one other thing that is just patently false (outrageously and ludicrously false): What marriage most certainly is not is a benefits grab. It does not exist for the sake of providing health benefits or minimizing estate taxes. That's the opposite of true. Marriage implicates over ONE THOUSAND civil provisions. Just look at this list provided by Atrios. It does exist to provide benefits and the benefits are the whole point. Churches can do what they want. But when the public's taxpayer money goes toward creating and enforcing hundreds of civil rights associated with marriage, I don't see how you could possibly say that marriage "does not exist for the sake of providing health benefits." Of course it does.

Saturday, February 28, 2004

ANOTHER INTELLIGENCE FAILURE? - Gauging American Evangelicals

Today's NY Times has a great piece explaining that many evangelicals are ambivalent about the FMA. It's not that they are die-hard gay rights activists - it's that they aren't particularly "energized" by Bush's endorsement. If that's true, that could be really bad news for Rove, the genius. After all, the whole point of pissing off half the country was that it would energize the infamous four million evangelicals who stayed home in 2000. The more I think about it, the more I see a much deeper problem for our Boy Genius and his prize student. Here's the million dollar question - what if Rove got bad information? In other words, is it possible that Rove depended too much on the leaders of the evangelical movement who might have given him faulty information about the preferences of the rank-and-file? And it is possible that these leaders might not have been speaking with the interests of their flock in mind, but rather in the interests of their own financial and fund-raising activities? That's a question I'm going to flesh out today. If I'm right, Rove may have just gotten Chalabi-ed by Christ, Inc.

There are two things everyone should understand about the American evangelical movement (and American Protestantism more generally): (1) it is extremely decentralized; and (2) the national organizations that claim to speak for it are multi-million dollar businesses. For those who don't know, "Protestantism" essentially means "not Catholic." It was a protest movement (thus the name Protestant) that eventually split from the Catholic Church in the 1500s, which resulted in the multitude of sects we have today.

As for the decentralization, the whole point of the Protestant Reformation was to democratize Christianity. Luther (along with the printing press and rising literacy - which were fundamental to the rise of Protestantism) taught that anyone with a Bible and a candle could come to know God. You didn't need a leader or a Latin-speaking priest - everything was about your subjective experience with God. Not suprisingly, the Protestant movement, over the course of 500 years, splintered into an infinite number of sects. My hometown alone (population 1500, county population around 8,000) has over 100 churches (if not more). That excessive splintering is part and parcel of the Protestant theology. I mean, I've seen churches almost split about whether guitars (and "modern music") should be allowed for hymns.

The point is that it's extremely problematic to say "evangelicals think X," or to say "doing policy X will energize evangelicals." It's just not possible to know. Unlike the Catholic church, there's no real organization to this multi-headed and very large organism. For one, a substantial number of (white) evangelicals vote Democratic. According to this article, nearly 10 million voted for Gore in 2000. Two, Blue America is way too paranoid about the power national organizations like the 700 Club or the Southern Baptist leadership have over ordinary church-goers. I grew up in a church affiliated with the Southern Baptist Convention. Some years our preacher would go to the convention, sometimes he wouldn't. The only time he ever discussed what happened at the convention was one Sunday when he talked about how stupid all the leaders were (and my town was very rural and working class -- no Starbucks; lots of F-You Boys). But I never felt any sort of organic connection to the national organization, much less any obligation to take or follow orders. The national organization and convention were generally ignored, as I suspect they were in many other churches. That's the beauty of American Protestantism - it's uber-democratic and egalitarian, in the inter-denominational sense.

And don't be fooled when you hear things like Dr. Dobson of Focus on the Family has a direct email list of 2.5 million. A lot of that comes from one or two nutcases in the congregation that get people to sign up on the email list, or the direct mail list. People sign up and then head home for the football game. What I'm saying is that the national leadership has little interaction with the rank-and-file, and know very little about their political preferences. And unless you grew up in a rural southern church, it's easy to imagine that Pat Robertson has mind control over millions of automatons. It's just not true. I had never even heard of Pat Robertson until I was in college - and I first learned about him when I heard liberal students attacking the religious right on campus (which offended me at the time b/c I was raised conservative).

Which brings me to point number 2. The so-called evangelical leadership organizations are very lucrative businesses. The 700 Club takes in hundreds of millions of dollars each year (some of it goes to good purposes, which doesn't change its desire for the money). Pat Robertson sold his "Family Channel" to Rupert Murdoch for $1.8 billion (read in Dr. Evil voice) for which Robertson got $200 million himself. The way these organizations raise money is through direct mail and email solicitations. And, as you might have guessed, they've been having a hard time fund-raising as of late. Just look at this recent (Feb. 8) NY Times piece, which describes it very well.

At the same time, attracting new supporters and raising money had grown much more difficult since their bete noire, Bill Clinton, left the White House, several Christian conservative activists involved in the Arlington meeting acknowledged. "Bill Clinton was a great motivator, and when he left there was a sense of 'O.K., our guy is in the White House,' " said Gary L. Bauer, founder of the advocacy group American Values and an early ally in organizing the Arlington meeting.

But some in the movement believe opposition to gay marriage could make for even more effective direct mail -- the financial lifeblood of most advocacy groups -- than their other great cause, the fight against abortion. "Abortion has never been a strong direct-mailer," said Richard A. Viguerie, founder of American Target Advertising and the dean of conservative direct mail.

In the coming weeks, Mr. Viguerie said, his company expects to send out more than 10 million letters for a host of social conservative groups.

I think you see where I'm going with this. These groups were having difficulties raising money and attracting new members, so they needed something new to demonize in their mass mailings. That seems to be how they raise money (which I'm deducting from the Clinton reference above).

Ok - we're getting close to the end. So here you have these multimillion dollar businesspeople who are watching their revenues decline. In case you didn't know, these are the same people who Rove allegedly talks to every day. They have free access to Rove, which means they have free access to Bush, which means they have free access to influence our national policy. And so they've been putting a ton of pressure on Rove, threatening that Christians won't come out or will be depressed - as if they had some sort of control or knowledge or even influence over that. And so Bush caved, thinking that it would energize evangelicals ("There is no middle" as Rove once said).

Here's the problem - how does Rove know that these evangelical leaders can (1) know the preferences of the extremely decentralized evangelical groups; (2) speak for this group; and (3) direct or influence this group in any way. Tell you what Karl, they can't. You got suckered, Chalabi-style. These people have a very tenuous grasp on the broader evangelical pulse (which I think is unfairly denigrated by the Left). I base this conclusion on both the Slate and NY Times article (linked above) and on my own personal experience. In my town (not exactly a hotbed of liberalism), the people who were actively involved in these national organizations were viewed as slightly nutty within the congregration. But the slightly nutty are the ones who give the money. And the people who get the money will act in the interest of those who are giving the money. It's classic public choice theory.

In other words, the "leadership" has a very skewed perception of the evangelical movement, because the people who give money and are the most active are not that (in my opinion) representative of the collective evangelical group. Simply put, it's not possible for these leaders to know (in an epistemological sense) what will or won't energize the base. But that didn't stop them from telling Rove that they knew something they couldn't possibly know.

Here's my last point. There are a couple of ways of looking at these leaders' influence in getting Bush's endorsement of the FMA. One theory is that these people really didn't care whether it would energize the base or not. They needed to raise money. And to raise money, they needed a bogeyman. It used to be Bill Clinton. Now it's Rosie O'Donnell and the queers. I'm not quite that paranoid though - I think that these people think they are acting morally. So, a more likely theory is that the leaders projected their own intense preferences upon the greater evangelical movement, which can neither be classified nor strongly influenced using a top-down approach. In other words, they told Bush what they wanted to see happen, rather than what would energize the broader evangelical movement. Which means they gave Bush faulty data.

Bush got suckered. Again. Only this time, he wasn't Chalabi-ed. He was Bauer-ed.

SATURDAY REPEAT

I've decided to take Saturdays off from the blogosphere. But rather than leaving you with nothing, I've decided to use Saturdays to repost some of my old writings that newer viewers may not have read. I wrote this post on January 18.

ORIGINALISM AND RELIGIOUS FUNDAMENTALISM - Distant Cousins?

I'm in the process of reading an interesting book by Karen Armstrong - "The Battle for God: A History of Fundamentalism." She surveys three major religions (Judaism, Islam, and Christianity) and traces the rise and development of each religion's fundamentalist movements. Her central argument is that fundamentalism should be understood as a modern response to, as well as a rejection of, the forces of modernity (and the changes that follow). Applying her insights to constitutional law, I was struck by the similarities between the rise, or recent revival, of originalism in American constitutional interpretation and the rise and revival of religious fundamentalism. In fact, I think the debate over originalism reflects a larger debate in our society between the forces of what I call modernism and anti-modernism. I also think this debate is the source of the extreme political polarization in America today. But let's back up.

According to Armstrong, the history of the three religions can be divided up into broad general categories. Throughout most of their existence, the religions existed in the "premodern" stage, in which the "conservative spirit" dominated. She explains:
Instead of looking forward to the future, like moderns, premodern societies turned for inspiration to the past. Instead of expecting continuous improvement, it was assumed that the next generation could easily regress. Instead of advancing to new heights of achievement, societies were believed to have declined from a primordial perfection. This putative Golden Age was held up as a model for governments and individuals. It was by approximating to this past ideal that a society would fulfill its potential. Civilization was experienced as inherently precarious . . . [and] could easily lapse into barbarism. (p. 34)

Friday, February 27, 2004

I'M A TECH GENIUS

HOW TO CRACK THE SCOTTY MCCLELLAN CODE

I used to be very frustrated with White House Press Secretary Scott McClellan's failure to provide any information about anything. I was even beginning to believe that the press briefings were pointless. But no more. I finally learned how to crack the code. And once you know how to crack the code, the briefings are actually very informative and will tell you all you need to know. Here's how you crack the code - whatever Scotty says, just assume the opposite is true. Expressed algebraicly, truth = the opposite of what Scotty says. Just add a "not" to everything, and you're golden. Just look at the following examples from recent press briefings (I'm getting them from Josh Marshall).

MCCLELLAN CODE: [regarding the 9/11 commission extension]: I mean, the President supports extension -- supports the extension that the commission has requested.TRANSLATION: The President does not support the extension that the commission requested.

MCCLELLAN CODE: [on cooperating with the 9/11 commission]: One, this administration has provided unprecedented cooperation to the 9/11 Commission.
TRANSLATION: The administration has not provided unprecedented cooperation.

MCCLELLAN CODE: [regarding Bush's willingness to spend only one hour with the commission]: [The President] looks forward to meeting privately with the chairman and vice chairman to provide them with the necessary information.TRANSLATION: The President does not look forward to meeting with them.

MCCLELLAN CODE: [regarding the Hastert kabuki dance]: Well, we continue to urge Congress to extend it for two months.TRANSLATION: We urge Congress not to extend it for two months.

KERRY ON A ROLL

I still have doubts about his electability, but John Kerry is on a roll right now. His debate performance was very strong. And today, he offered his plan to combat terrorism. This is exactly the right strategy. As I explained before, Kerry could pick up a lot of alienated moderates by showing a strong conviction to combat terrorism. Quite simply, this is the only advantage that Bush has left. He's losing on every other issue, and last I checked, he was about at even on Iraq. If Kerry can make a formidable challenge on the issue of terrorism, it will be very difficult for Bush to win.

Bush's anti-terrorism strategy relies heavily (I think too heavily) on the military. But, people are scared, so this isn't a loser for him. What Kerry must do is to combine a willingness to use the military with an approach more sympathetic to international alliances. But Americans aren't crazy about internationalism, so Kerry needs to package this message in terms of national security. In other words, he's not going to get anywhere saying, "We must respect the international community." He needs to say, "Respecting the international community makes us safer. Ignoring it or embarrassing it makes us weaker. Without the goodwill of the world, we cannot obtain the intelligence and cooperation we need to go after those who would destroy us." Something like that. I hate to sound too much like Dick Morris, but the Republicans are going to try to justify their policies through fear. Kerry has to strike back and say that Bush's arrogant treatment of the world endangered our security, which it has. I would love to see the number of people who wanted to attack us in late 1999, and compare it to the number of people who want to attack us right now.

Again, Kerry doesn't have to win this debate. If he just closes the gap, he wins in a landslide. That is, unless the Bush/Greenspan economic policy of cutting-Social-Security-to-pay-for-tax-cut-inspired-deficits becomes popular.

THE "PASSION" AND AMATEUR SOCIOLOGY

It's Friday, so I'm going to be an amateur sociologist today. Again, I haven't seen the Passion, but I've read about 100 reviews or blogs on it, so I think I have a good idea of what the film is about. Getting away from the controversies surrounding the film, I want to make a somewhat different observation. The Passion is perhaps the most quintessentially American film out right now, in that it reflects a lot of characteristics of modern American culture (and this is not necessarily a good thing). If you were a sociologist, you could easily account for the Passion's popularity by looking at larger themes within American mass culture. As a disclaimer, this is all speculation, so I'd welcome thoughts on these observations.

The Passion and Reality TV

Whatever else it is, the Passion is extremely violent and gory. Some people will find this gratifying because it symbolizes Christ's suffering and will lead to a higher religious experience. I think, however, that most people will find it gratifying because Americans are so very sadomasochistic - they derive pleasure from watching pain inflicted on others. And American popular culture reflects this insatiable desire for sadomasochism. The Passion is merely an extreme manifestation of a much larger and widespread phenomenon.

Take reality TV - it is, at its essense, sadomasochistic. I watched "My Big Fat Obnoxious Fiance" (it was like crack - too hard to resist). That show was 100% sadomasochism. This poor family was emotionally tortured while they thought their daughter/sister was going to marry this truly terrible guy (but mustn't give the queers this right - or else marriage will be "undermined"). Take American Idol - the main reason people watch is to see what smartass things Simon will say. That's also why the Asian guy is so popular right now (you know, the one that sung so badly that it became kitschy). The list goes on and on - Fear Factor, Survivor, Temptation Island. They're all about watching others in pain. I don't know what causes us to enjoy sadomasochistic programming so much, but we clearly do (Freud linked it to sex - shockingly). These shows are all about gratifying our desire to see others in pain. I think even presidential political succumbs to this demand. We say we want to be inspired, but we what we really want is to see people destroyed. Our sadomasochistic desires also explain the fascination with the Michael Jackson and Martha Stewart trials.

To fool ourselves into thinking that we are not watching only because we love to see people in pain (or get some unconscious sexual gratification from seeing others in pain), the reality shows need to give us some sort of excuse for watching that lets us believe we're not that bad. For example, "My Big Fat Fiance" was eventually going to award the family a million dollars - so we thought it was OK to see them tortured in the meantime. Likewise, people can make excuses for enjoying the violence of the Passion because they can rationalize it as relating to their faith.

I'm not casting moral judgments on this part of the American pysche. I mean, the Romans packed the Coliseum to see tigers eat people - this is not a new phenomenon. And a lot of great art incorporates sadomasochism. But make no mistake - the reality shows and the Passion provide very little "art," and a great deal of sadomasochism. From what I understand, Gibson really isn't using the violence to express some higher, intellectual point. The point of the Passion is the violence - and we love violence, for many the same reasons that some people like porn - pleasure from pain.

What's truly interesting is whether there's something about American society that makes us more willing consumers of sadomasochism. In other words, I'm asking whether this is part of the human condition, or whether something about our society makes sadomasochism even more appealing. Perhaps it's that so many Americans hate their jobs, or find their lives boring - they like the escape of seeing others in pain. Maybe it's because Americans are so isolated and atomized (just look up how long people watch TV every day), which robs them of healthy social and community interaction. I don't know - again, I'm merely speculating. I'd welcome people's thoughts on this.

Thursday, February 26, 2004

QUICK THOUGHTS ON THE DEBATE - Why Not Kerry-Edwards?

Nothing terribly dramatic. I thought Kerry's performance was much better. Sharpton showed rhetorical brilliance - again. ("Let's make a constitutional amendment against presidents that lie.") I'm no longer dreading his convention speech (assuming he gets one). I'm actually kind of excited about it. Anyway, the only thing I took away from tonight was a strengthened conviction that Kerry-Edwards would be a powerful ticket. I laid out my arguments in some detail in a previous post, so I won't do so again.

To sum up what I said earlier (I recommend reading the earlier post), the main point I made is that voters place far too much emphasis on Electoral College calculations with respect to vice-presidents (though I've argued they place far too little emphasis on Electoral College calculations with respect to presidents). I think that the most effective VPs are those who complement the ticket. For example, Quayle didn't help Bush in the Midwest in 1992. Kemp did not win New York (or anything) for Dole. Lieberman did not win Florida for Gore. I think that instead of trying to pick off an individual state, Kerry should follow Bush's example in 2000. Cheney was not selected in the hopes of carrying Wyoming, or carrying the brooding Hobbesian Gollum-like creature vote (both groups voted Bush). He was selected to complement Bush - to fill in Bush's gaps (which related to gravitas and national security in 2000). In other words, Cheney was selected to create a winning ticket in every state, not just to win a couple of states.

Kerry will probably end up picking Gephardt, or Richardson (that's my bet), or Graham, all in the hopes of picking off a couple of states. I'm sorry, but any of those combinations will create the most boring, unexciting ticket ever. Yes, Gephardt gets you Missouri, but at the cost of losing all energized Democratic voters in other swing states (which also means less donations, less committed volunteers, grass-roots efforts, etc.). In thinking about national tickets, does anyone really get excited about Kerry-Gephardt or Kerry-Graham (uggh) or even Kerry-Richardson. No. What Kerry really needs is someone to complement him. Kerry needs someone who can fill in his gaps, so that he can create a truly national ticket that inspires excitement.

MEL GIBSON AND ANTI-SEMITISM

I haven't seen the movie yet, though I'm hoping to see it this weekend. I listened to an NPR show today and the question of whether the film or Gibson was anti-Semitic came up a lot. I express no opinion on that. I am suprised, though, by how certain everyone seems to be that the film either is or isn't anti-Semitic. How can we possibly know what Gibson's intent (either conscious or unconscious) was? The film reminds me of the mirror in the Harry Potter movie. You look in and it shows you what you want to see. For those so inclined, there's a lot to support the anti-Semitic claim - especially the positive treatment that Pilate gets and the demonization of the Jewish leaders. On the other hand, there's a lot to support the opposite conclusion. After all, the depiction of pain is a big part of the Christian message that Christ suffered for man's sins, and this part of Christianity has nothing to do with Jews.

It's sort of the same with WMDs. Throughout 2003, people thought Iraq definitely didn't have them, or definitely did have them. There was nothing in between - no agnosticism about a question they could not possibly know the answer to.

So, the Passion is probably anti-Semitic if you want it to be, and it's not if you don't want it to be. And, Gibson is anti-Semitic if you want him to be, and he's not if you don't want him to be. Reason follows passion - always.

Well, for those who like that sort of thing, I should think it is just about the sort of thing they would like.
- Abraham Lincoln

[Update: I should add, though, that for those who are anti-Semitic to begin with, this film can only make that worse. But that's true for any work of art. ]

WAS STROM THURMOND A RAPIST?

Something has been troubling about the conception of Strom Thurmond's daughter. The more I think about it, the more it seems like rape. People will certainly get upset about my claim, but hear me out.

From what I understand, Thurmond had sex with Carrie Butler, who was a 16 year old maid in the Thurmond house at the time. That would have been in the 1920s. Now in case you don't know, the early 20th century was about as bad as racial relations got (especially in the South). This was the era of lynchings and disenfranchisement. The Klan was also enjoying a resurgance. Blacks had no political or social power, in large part because they had been ruthlessly lynched, maimed, and threatened in order to force them to abandon all civil and political rights.

Rape, as you know, is forced sex, or sex without consent. Here's my question - was Carrie Butler capable of consent? I think not. I don't know the details, but just think about Butler's situation. Here you have a 22 year old scion of a prominent South Carolina family approaching her for sex. With a single word or accusation, Thurmond could easily have had her fired or arrested or even killed. The power imbalance was severe (to say the least). In the world of South Carolina in the 1920s, 16-year old black maids could not possibly have consented or resisted white sexual advances. The potential threats were too heavy in the air.

Again, I'm not saying that Thurmond held her down and violated her. But it's worth asking - did Thurmond rape Butler? And why aren't more people angry about it?

[Update: I did a quick Google search and found this MSNBC article, which makes the case much better than I do. It also provides some grotesque details of that area of South Carolina at the time. By the way, I was reminded of this topic after reading the Slate article about Naomi Wolf's claims that Yale ignores sexual harrassment, which I will be writing about later (as a Yalie myself - I have some problems with Wolf's dubious arguments.) I also was on campus during one of the events she discusses (in 1996), and she misrepresents it. I'll explain later.]

Wednesday, February 25, 2004

THE LIMITS OF STATES' RIGHTS RHETORIC

One of the many criticisms of Bush’s FMA endorsement is that he’s turned his back on states’ rights. After all, conservatives are supposed to be the party of states’ rights, so if they were consistent, they would oppose the FMA on federalism grounds. While I agree Bush is being a bit inconsistent, I don’t think this criticism is a strong one. And I think so largely because “states’ rights” is a meaningless concept. There is nothing inherently conservative about supporting states’ rights. There is nothing inherently liberal about it either. And the reason is because “states’ rights” has no conceptual meaning. It is always and necessarily a pretext for some underlying argument. So, every single argument that you will ever hear involving federalism is actually an argument about something else. As a matter of logic, states’ rights adds nothing to the argument - it’s merely window dressing. But let’s back up to see why.

Throughout history, states’ rights has been invoked equally well by conservatives and liberals (though I don’t like imposing those words on history - they don’t really apply well, but anyway). The most obvious example was the use of states’ rights rhetoric to defend slavery and segregation. But at the turn of the century, states’ rights rhetoric was adopted by “liberals” such as future Justice Brandeis to oppose corporate centralization and big business. In the late 19th and and early 20th century, federal courts were notoriously anti-labor and pro-big business, and as a result, so was federal law. The most infamous example of the courts’ labor bias was the all-too-common labor injunction, which blocked strikes and other valid labor movements. Liberal reformers challenged these federal rulings by arguing for more power to be given to the states.

More recent examples confirm this pattern. Conservatives, for example, want their states’ rights when it comes to abortion or environmental regulation. But they oppose it for gay marriage and medicinal marijuana. Liberals do the same thing, only in reverse. It sounds inconsistent, but it’s really not. That’s because the “states’ rights” arguments are actually arguments about the underlying disputes themselves - slavery, marijuana, gay marriage, Bush v. Gore, whatever.

Logically speaking, the statement “I support states’ rights” has no meaning. You always have to ask the follow-up question - “the right to do what?” Federalism does not exist in a vacuum - it can only have meaning in relation to some external debate. Thus, whenever anyone says, “I support states’ rights,” he or she is actually saying, “I support granting the states this or that particular power.” And it’s the merits of “this or that particular power” that are actually debated under the guise of states’ rights.

Take some of the most common justifications for states’ rights. For example, people say, “I believe local communities can decide what’s best for them, and increasing states’ rights is a way to allow local people to express their preferences.” But you always have to ask the follow-up question - “increasing the rights to do what?” What if the local community wanted to enslave blacks? Or what if they wanted to end Social Security, or eliminate the federal interest rate? No one wants to give the states the power to do these things. And that’s because people have strong views about the merits of slavery and Social Security. States’ rights has nothing to do with it.

Another common justification is that giving power to the states encourages diversity and experimentation. But again, you have to ask - “giving them power to do what?” What if a state wanted to ban interracial marriages or bomb Canada? Those are diverse experiments. Our nation wouldn’t allow them because we think banning interracial marriage and bombing Canada are immoral actions.

Same deal for gay marriage. A lot of reasonable people say, “I think this or that, but I really think it should be left up to the states.” I’m sorry, but leaving it up to the states is merely an expression of your view of the merits of gay marriage, not states’ rights. Some conservatives think gay marriage is so wrong that it should not be left to the states. Some liberals think the right is so fundamental that it should not be left up to the states. Those people in the middle who would leave it up to states don’t subscribe to either theory (leaving aside tactical decisions of politicians). This “moderate” group doesn’t think gay marriage is so wrong that it should it banned, but they apparently don’t think that it’s such a fundamental right that it must be imposed on the states either (like interracial marriage should be). This “middle way” is simply a reflection of some people’s particular view of homosexuality and gay marriage. States’ rights has nothing to do with it.

This is why both sides seem so inconsistent whenever federalism-related disputes come up (especially in the legal world). But once you understand that states’ rights is merely a pretext for some underlying dispute, everything makes sense. Conservatives support states’ rights when it supports a position they favor - abortion, federal regulation, state sovereign immunity - and disregard it when it doesn’t - Bush v. Gore, gay marriage, marijuana. No doubt some conservatives are in favor of letting states have legal marijuana, but this decision is based on their libertarian preferences (or their fondness for da herb) rather than on “states’ rights.” Liberals do the same thing - no federalism for slavery, but federalism for medical marijuana.

So if the concept of states’ rights is so meaningless, why has it made such a lasting impression on our national consciousness? In my opinion, it’s a persuasive and beautiful narrative - meaningless and empty, but beautiful nonetheless. In other words, it’s a great rhetorical tool. It evokes images of Norman Rockwell town meetings. It lets people argue that they are for local sovereignty. But make no mistake - it adds nothing. It is always used to either attack or defend a pre-existing policy preference.

THANKS TO ALL

LF just got its 10,000th visit today. It's not a lot I know, but you have to remember that it's only been around for two months, and it was not widely trafficked during the first few weeks (to say the least). Anyway, I just wanted to thank everyone for reading and for all the emails. I do appreciate it.

KERRY'S MOMENT

With independents opposing the FMA by nearly 52 to 37, Kerry has been given an opening to snatch them up, along with moderate Republicans. Now is the moment for Kerry to become a terrorist hawk. I think there are literally millions of single issue Bush supporters, who care only about protecting the nation from terrorists. Many of these people hate everything else about Bush, but fear that Democrats won't be tough enough.

If Kerry came out right now and ran to the right of Bush on protecting us from terrorism, I think he could be well on his way to the White House. Terrorism is the only thing the Bushies have left. If you take that away (or mount a serious challenge), he will only have his white evangelicals to fall back on. Kerry has been given a window - let's see if he takes it.

THE STUPIDEST ARTICLE . . . EVER - Stanley Kurtz's Faulty Logic

I just got directed to an article in the Weekly Standard by Stanley Kurtz called "The End of Marriage in Scandinavia: The 'Conservative Case' for Same-Sex Marriage Collapses." The article's thesis is that after legalizing same-sex marriage, Scandinavian countries have experienced higher divorce rates and more out-of-wedlock births. I've had this article cited to me several times, so it's important to understand why the logic fails. It's a very simple principle - correlation does not equal causation.

There's a great example from Samuel Johnson's Rasselas, which shows why this logic is so bad. In the book, the main character finds a troubled old man. The man was worried because he alone was responsible for making the sun rise each day. Every morning, the man had to get up and perform a ritual, and lo and behold, the sun would come up. Johnson's point was that correlation does not equal causation. Just because the sun always followed the performance of the ritual, that does not mean that the ritual caused the sun to go up.

This exact same logical fallacy is found in the Kurtz article. Kurtz cites a parade of horribles, but never explains how gay marriage (as opposed to broader demographic trends common throughout the West) caused the higher divorce rates. In fact, it's a little contradictory to say that a policy that increases permissible weddings and creates families actually causes higher divorces and destroys families. Here's how Kurtz gets around this contradiction:

Out-of-wedlock birthrates were rising; gay marriage has added to the factors pushing those rates higher. Instead of encouraging a society-wide return to marriage, Scandinavian gay marriage has driven home the message that marriage itself is outdated, and that virtually any family form, including out-of-wedlock parenthood, is acceptable.

It has? What? My law professor would give that logic an "F." I mean, do people really believe this stuff? Yes, divorces are up, but that's true in America too and has been since the late 50s (should we blame "I Love Lucy?" or Eisenhower perhaps). Lots of factors lead to the increase of divorce. And because every post-industrial country has experienced increased divorces, the more empirically minded might think that this suggests broader, structural causes (other than those damn gays running around all over the place). First, women now have both the financial ability and the legal right to leave marriages they find distasteful. Second, American workers (and Western workers) are much more mobile and move around a lot, which puts stress on the nuclear family. Third, a lot of people are concluding that marriage sucks - they like their freedom and mobility. Kurtz is merely pointing out demographic trends that have a multitude of causes, and then pinning that cause on gay marriage.

People do the same thing to the "60s." They point to hippies and blame them for changes that, in reality, were brought about by our revered free market capitalist economy (and I'm not advocating socialism, everyone's favorite straw man - I'm just pointing out some of the negatives). Here's a news flash - capitalism destroys families, not homosexuals. Our economic structure imposes endless demands on Americans: the social pressures of having a good house or car; the ability of companies to come and go on a moment's notice; the destruction of local stores by chains like Wal-Mart; the pressures to work longer and harder hours and ignore the family; along with the pressure on Americans to move around continuously to find money for health care and education (which should be free and are free in countries not run by warlords).

Not to get too Marxist - but the 60s and gay people are useful scapegoats for the real culprit - the free market, global economy. It's destroyed far more families than any gay people ever will.

THE REALITY OF "TRADITIONAL" MARRIAGE - The Human Side of the FMA Debate

I know I promised another post on why Rove is not a genius - that's coming. But I'm not finished with the FMA debate. I think the key for all progressives is to focus on defining the terms of the debate. If we allow the debate to proceed at a dreamy abstract level, it will be hard to persuade anyone. For example, we can't win a debate about what is or isn't a "traditional pillar of moral society" - whatever the hell that means. That's the reason conservatives use lofty, meaningless language in the first place. The language itself is so devoid of meaning that anti-gay advocates can impose their own personal preferences upon the language and make it mean whatever they want it to mean (which is a common tactic in both biblical and constitutional interpretation). And as a result, rational argument becomes pointless because the argument becomes completely circular. Gay marriage is wrong because it's immoral. And because it's immoral, it's wrong.

Progressives should come down from the clouds and show what the marriage ban actually looks like on a micro-level. We need to show people the painful world that exists for those who don't have the benefits that heterosexuals take for granted every day. Atrios, for example, provides an excellent list of all the rights that depend upon a legally recognized marital status. I want to do my part by offering some more cases in which the lack of marital status led to heart-breaking results. I offered some yesterday (which people should read), but here are more.

Again though, it's important to remember that the more concretely we argue, the more effective we will be. Rational arguments (or "logos" - defined here) won't work - progressives must appeal to pathos, or to people's natural sense of pity and compassion. As I explained in a previous post, rational argument usually doesn't lead anyone to change their minds, because rationality is merely a tool to justify pre-existing preferences that are the result of non-rational factors such as one's upbringing, or social network, or parents, etc. Anyway, here are more of the horrible cases.

Guardianship of Z.C.W. (Cal. Ct. of App. 1999). In this case, a lesbian couple had a baby (via insemination) in 1987. They proceeded to raise the child together, and the child was even named after the non-biological parent. In 1990, the couple split up, but the partner got to visit the child regularly through 1994, when the biological parent terminated the agreement. The partner, shut off completely from the child she had raised, secretly met with the child until the biological mother found out about the meetings. She then obtained a restraining order against her former partner under the "Domestic Violence Prevention Act" (there was no indication of any mistreatment). The restraining order prevented the partner from even contacting the child. In denying the partner's eventual lawsuit, the court said, "a lesbian partner who was not the adoptive or biological parent of children conceived during a lesbian relationship [is] not entitled to seek custody or visitation of the children." I think any parents out there can understand the magnitude of the pain this would cause.

Florida Adoption Law - Florida statute 63.042 regulates adoption. Section 3 of that statute says "No person eligible to adopt under this statute may adopt if that person is a homosexual." This provision was recently challenged in federal court (the 11th Circuit) - Lofton v. Secretary. In this case, a group of plaintiffs sued, arguing that this statute was unconstitutional. Two of the plaintiffs had been involved in the Florida foster care program. One had cared for an HIV-positive baby since birth for over five years and nursed him back to health (he had previously cared for numerous other sick children). He ultimately filed for adoption. A second plaintiff began caring for a child in 1996 (the child was 4) after the child's alcoholic father left it. When the two plaintiffs (and there were others in the case) filed for adoption, they were denied ONLY because they and their partners were homosexuals. The court explained, "the state has a legitimate interest in encouraging this optimal family structure by seeking to place adoptive children in homes that have both a mother and father." Apparently, "optimal" does not refer to a guardian who has successfully and lovingly cared for the children since birth.

Mississippi Adoption Law - Section 93-17-3(2) states that "Adoption by couples of the same gender is prohibited." This is a new law, so it hasn't been challenged yet, but you get the point.

People need to understand that homosexuality is a reality. These people raise children, seek adoption, get divorces, and have custody battles. By banning gay marriage and civil unions, the state does the opposite of strengthening the family. It destroys families and prevents them from being created. And it crushes individuals who are torn from the children they have raised since birth. These laws are cruel. And well-intentioned or not, those people who support such discriminatory laws are advocating cruelty and creating pain and destroying families. I dare call it immoral.

Tuesday, February 24, 2004

WHY GAY MARRIAGE MATTERS

Bush said that the FMA (or protecting "traditional" marriage) will "promote the welfare of children and the stability of society." I would urge Bush to do a little legal research. These are past cases that show the human costs of denying homosexuals the right of marriage. My research was hasty, so I don't know if statutes have been changed, but these are real cases. Just look at the following examples and see whose side most threatens the "welfare of the children."

Liston v. Plyes (Ohio Ct. of Appeals 1997). This case involved two lesbians who had been partners for sixteen years. They decided that they wanted a child and Pyles agreed to be the biological mother. They both raised the baby for three years and Liston (the partner) had even provided the bulk of support in 1994, the year they broke up. After the separation, Pyles refused to grant Liston visitation rights and so she sued. The court denied visitation rights to someone, who by anyone's definition, was a PARENT. The Ohio court explained, "In sum, appellant has no statutory right to visitation nor a statutory remedy to assert her alleged right to visitation. Should the legislature determine that companionship or visitation rights should be extended to lesbian and/or homosexual partners, such a determination must be left to the legislature: not this court. " So, imagine (parents) if you were separated from your baby after raising it for three years and then you were refused visitation. Can you imagine how crushing such an experience would be. It makes me almost cry just thinking about it. What's so fucking Christian about this?
In re: Visitation With C.B.L. (Ill. App. Ct. 1994). Again, a lesbian couple agreed to have a baby and one of them was inseminated. After raising the child together for a year and a half, they broke up and the biological mother refused to allow the partner to visit the child. The partner sued and the court dismissed her suit. It explained, "This court, however, has no authority to ignore the manifest intent of our General Assembly. Who shall have standing to petition for visitation with a minor is an issue of complex social significance. Such an issue demands a comprehensive legislative solution." But a two-thousand year old book says it's bad, so I guess there's no harm. Right?

Here's a happier one - Leora F. v. Sofia D. (Family Court NY 1995). In this case, the biological mother died shortly after birth. Her partner filed for guardianship, but it was challenged by an estranged husband and his mother (the child was not even the husband's child). Fortunately, the child was awarded to the partner, but I think you can imagine what would happen if this case came up in a different state, or had been heard by a different judge - let's say, oh, a Bush appointee or a GOP state judge.

There are undoubtedly many others - I'll look when I have more time. But our current laws prevent partners from enjoying so many important rights such as bringing wrongful death actions, from adopting, and from hospital visitations. And I'm sure that some homophobic grandparent has been awarded custody of children who were raised by a deceased biological parent and his/her partner. This is heart-breaking stuff. And it's really hard not to hate the FMA supporters when you understand the real-life consequences of their actions.

I should say that I don't mean to be too hard on Christianity - just this particular interpretation of it. I have argued that Christianity - properly understood - actually requires people to accept the rights of gays and lesbians.

THE END OF THE GOP - Bush's Tragic Error

Bush is set to endorse the FMA and Democrats should be thrilled. This move will prove to be a colossal mistake and will only help the Democratic long-term strategy of limiting the GOP to a white, southern, evangelical base (see my post from last night - below).

I think the GOP is grossly "mis-underestimating" the opposition that the amendment will generate once people realize that it does more than "protect" the right of states to define marriage - it actually will intrude into their lives by banning all gay marriage and possibly all civil unions as well (see here for details). There's a precedent for the backlash-to-come - slavery (and I'm not equating support for slavery with opposition to gay marriages - I'm just noting the backlash phenomenon). Before the Civil War, many northerners were largely indifferent to slavery as long as it didn't affect them or their lives. It was a regional phenomenon, far removed from them. But the South insisted on enacting the infamous Fugitive Slave Act, which required northerners to assist the authorities in returning people to slavery. When slavery began actually affecting their lives in tangible ways, things changed dramatically. One famous example of this change is Anthony Burns, a former slave in Boston. In 1854, Burns was set to be sent back to slavery and it inspired a mob to try and save him. It took a military deployment to beat back the mob, and Burns was reenslaved. This inflamed and radicalized the north. Amos Lawrence (a Whig) put it best, "we went to bed one night old fashioned, conservative, Compromise Union Whigs & woke up stark mad Abolitionists." John Brown explained that the Fugitive Slave Law created "more abolitionists than all the lectures we have had for years."

Something similar will happen if Bush pushes hard for the FMA - especially if it means that couples will start having to relinquish benefits or even children (either through adoption bans or through the legal default that children of deceased parents go to family members other than the partner - that would be a great legal battle - a partner battling homophobic grandparents for custody of a child). People don't mind if Alabama bans civil unions. But people will mind when the federal government reaches into their lives and forbids them from enacting civil unions through their legislature. And they will certainly mind when the GOP attempts to carve homophobia into our revered rights-expanding Constitution.

It's so stupid. The GOP had a short-term advantage on the issue because it seemed like "extreme" San Francisco types were pushing too hard and imposing their will on the country. But the GOP is forfeiting that advantage by introducing their own extreme amendment. But Rove should take note, people aren't really that outraged at what's going on in San Francisco. Maybe he should talk to people other than the nutball evangelicals he allegedly talks to every morning. And he should realize that even if a poll indicates a lack of support, the poll says nothing as to the intensity of that lack of support. Rove is making a tragic error - only the evangelicals intensely support the amendment. Right now people are indifferent. But there will soon be intense opposition once the GOP takes this fateful step, even among Bush's friends. Already, the Log Cabin Republicans have threatened to drop their support if Bush supports the FMA. Many others will follow. As I explained in post below, supporting the FMA is ignoring major demographic trends and jeopardizing the health of the GOP over the long term. Bring it on George, you stupid, stupid man.

[Update: The first casualty - Andrew Sullivan. Bush just lost the most trafficked blog on the Internet. More will follow.]

[Update 2: The Musgrove version of the FMA - the one Bush is allegedly supporting - would ban civil unions too, despite what Bush and the press are saying. Check out Jack Balkin's post for details - pointed out by Atrios initially.

Monday, February 23, 2004

WHY KARL ROVE IS NOT A GENIUS - Part 1 - Ignoring The Secular

Like many many others, I have long held the opinion that Karl Rove (no matter how distasteful) is a political mastermind. His alleged political genius was first announced to the world in 1999. Just look at what Mark McKinnon, a Bush media advisor, said about him back then: "Karl plays politics like Bobby Fischer plays chess . . . He looks at the whole board and thinks 20 moves ahead." And as we all know, Rove fancies himself a modern Mark Hanna, the Republican strategist who helped McKinley usher in an era of Republican dominance from the 1890s to the 1920s. Like Hanna, Rove wants to create a new Republican majority. But after reading Stanley Greenberg's wonderful (wonderful wonderful) new book - the Two Americas - I'm beginning to realize that the genius has fucked up - royally. Instead of laying the groundwork for a new Republican majority, Rove has directed Bush down a path that will result in permanent minority status for the Republicans over the long term.

If Bush read Greenberg's book (hypothetically speaking), he would dump Rove and bring Jim Baker and the country club Republicans back in. That's because Rove's strategy is not really that savvy. In fact, it's dumb. The opposite of brilliant. He's essentially sacrificing the long term health of the Republican Party for the short term success of Bush. It's sort of like trading 10 minor league pitchers for a 40 year old Roger Clemens. It will help in you this year's World Series, but it will ultimately hurt you. Based largely on Greenberg's book (which I'm only halfway through), I'm going to do two posts (one today, one tomorrow) on why Rove's strategy is so bad.

If you're a Republican, listen closely - Rove is going to destroy your party. And the reason why he's going to destroy your party is that he is aligning your party with segments of the population that are in systematic decline. He's also creating a party that is directly opposed to those segments of the population that are growing the most rapidly. Tomorrow, we'll look at the Hispanic strategy, but today I want to look at gay marriage and the secular, urban, and highly educated vote. (Disclaimer - I haven't read Ruy Texiera's "The Emerging Democratic Majority," but I suspect many of the arguments will be same. I welcome comments on that since I haven't read it.)

Before reading Greenberg's book, I was convinced that America was in the midst of a Third Great Awakening. I feared that militant evangelicals (concentrated in the South) were increasing in numbers, and were on their way to creating a permanent Republican majority. Not true. According to Greenberg, the number of regular church-goers (attending church every week) is 25%, down from 35% in 1972. The decline seems to have stopped, however, and it's held steady at 25% for the past 15 years. And it increases to 30% when you include people that go nearly every week (though I suspect a big chunk of these are black voters). But - get this - the number of people who either never go to church or go less than once a year has increased from 18% in 1972 to 29% in 2000. The number increases to 42% when you include the number of people who go to church only once a year. I was shocked at these numbers, but it explains why the Democrats gained seats in 1998 on the heels of the moral crusade against Clinton.

Also, Democrats are sweeping up in what Greenberg calls "ideopolises" - which are "post-industrial regions with information technology, entertainment . . . major universities . . . immigrant and ethnic diversity, and frequently thriving artistic and gay communities." These areas are growing at a rapid pace - more than twice the rate of the rest of the nation.

In addition, the voting population is growing more and more educated. In 1952, 8% of the population was college educated. Now 31% is. The number of professionals has grown from 20% in 1984 to 27% in 2000. The number of voters with postgraduate educations has increased from 3% in 1960 to 11% in 2000. All of these groups (along with the urban secular voters) tend to be more socially moderate (which correlates with education levels), especially on the issue of homosexuality. If all that’s not enough, people under 30 favor gay marriage 55 to 42. It should be clear which way the wind is blowing on this issue. And that's not even counting the millions of gay people in America and their friends, families, and co-workers (though I'm sure there's significant overlap).

Enter Karl Rove. Rove, in his wisdom, has decided to pursue a social agenda that will be directly opposed (even passionately opposed) by these rapidly growing groups. Rove is pinning his hopes on white, southern, evangelicals - whose social preferences are opposed (sometimes passionately) by the groups described above. In other words, he's betting on the wrong horse - and he's betting a lot of money. And that's why Jim Baker needs to step in and stop Bush from making the biggest mistake of his career - not Iraq, not the tax cuts - but endorsing the FMA. Rove thinks it will divide the Democrats. It won't, but it will destroy the Republican Party. It will drive out all the Andrew Sullivan/South Park/Seattle suburban, socially moderate Republicans from the party (and God knows it needs them). It will also alienate young people, and it will further isolate the base of Republican support to a narrow-minded segment of the population which is not growing at all.

But the FMA is just one aspect of the larger problem with Rove’s long-term strategy. Betting on the evangelicals (who are disproportionately southern and white) is ignoring demographics. Rove has often stated that he wants to get the 4 million evangelicals who stayed home in 2000 to come back out. And it looks like he’s pushing hard on Bush to adopt the FMA in pursuit of that goal. Bush seems to be resisting and he should. Quite simply, any strategy (but especially gay-bashing) that will fire up 4 million evangelicals will necessarily cause a backlash among the groups listed above. Remember 42% of the country does not go to church more than once a year. And the group is growing, especially in the rapidly growing ideopolises. I think Republicans underestimate how quickly indifference could transform into passionate opposition once Bush endorses an amendment that would ban all gay marriage and possibly all civil unions too - see my post here.

Republicans’ only chance of long-term viability is to adopt (or at least tolerate) Schwarzenegger-style Republicanism - fiscally conservative, market-oriented, but socially moderate (By the way, Arnold exists only because there was no GOP primary - McClintock would probably have beaten him in a primary). If the GOP moved in this direction, they could make inroads into the cities and Starbucks-drinking suburbs and establish a real, lasting majority. But they won’t, in large part because Rove is letting the wrong people steer the boat. Rove has persuaded Bush to pin the Republicans’ hopes on one of the most socially polarizing groups in America - southern white evangelicals. And what's worse - they're literally chasing centrists out of the party. National Review had a cover article calling Arlen Specter "The Worst Republican Senator." Northeastern centrists like Christine Todd Whitman have no place in Rove's GOP, and neither does Colin Powell and the internationalist wing of the GOP foreign policy establishment.

Note to Republicans - you better get Baker in and Rove out. He's driving the party off a cliff. And if Bush caves in and endorses the FMA, he will have ushered in an era of Democratic dominance. And if that happens, it will be because the "genius" was too clever by half.

KERRY IS STARTING TO LEARN

Regular readers know that I've been fairly critical of John Kerry. But I think he may be starting to learn a bit about rhetoric. His latest anti-Bush assaults have been pathos and ethos-inspired, which are quite different (and quite refreshing) from Kerry's traditionally logos-inspired arguments. (see my post on Kerry and Classical Rhetoric for a definition of "pathos" and "ethos"). For example, after Senator "Wounded Knee" Chambliss attacked his voting record this weekend, Kerry challenged Bush to a debate about Vietnam. Tonight, Kerry charged the GOP with attacking his patriotism. He said, and I love this, that he would not have his patriotism and commitment to defense challenged by Republicans "who never fought in a war." Ouch.

This is good stuff - and the strong language he's using is a legacy of the Dean campaign. But look at Kerry's argument through the lens of classical rhetoric. First, he's making a strong ethos-inspired (or character-based) argument by drawing a contrast between himself, the war hero, and Chambliss and Bush, the draft dodgers. And he's forcing that issue to be discussed in the news. Second, the bravado in his response to the GOP attack was meant to appeal to the emotions of Democratic voters. Dems (desperately) don't want to see another candidate back down and equivocate and seem weak before GOP national security attacks (and I'm looking at you, Tom Daschle). They want someone who did exactly what Kerry did - strike back. Even if Kerry is slightly distorting what Chambliss said, it doesn't matter. Democratic voters don't want logos - they want pathos. They want someone to fight back and get them fired up. I must admit, Kerry scored some major points against Edwards this weekend.

Also, Kerry's attacks strike me as very media-savvy, which is also promising. First, the attacks knocked the GOP off their feet a bit. They expected to be defining the debate by attacking his record. But rather than arguing within the terms of a debate defined by the GOP, Kerry started a new one. The new debate was whether he was patriotic, and whether the GOP is equating patriotism with support of every weapons system ever proposed. Marc Racicot (chair of the Bush campaign) was even forced to say, "We have praised repeatedly his patriotism." That's not the sort of words the GOP had hoped to be using against the Democratic candidate.

It's promising. Kerry is showing a willingness to both fight back, and more critically, an ability to redefine the terms of the debate in a way that catches headlines. Did I speak too soon about Kerry's electability?

THE ANSWER TO CALPUNDIT'S QUESTION

Over at Calpundit, Kevin Drum asked the following question: "[H]ow did [Bush] manage to convince the vast majority of the Republican party apparatus that he should be their favored candidate?" His point was that Bush has no experience and certainly no intellectual vision. So how he'd do it?

I think the answer traces back to the internal dynamics of the Republican Party. The Republican Party is in reality a coalition of at least two major blocs - rural/Southern social conservatives and urban libertarian Wall Street types. The former go along with Republican economic policies (even though they run counter to rural America's economic self-interest) because they have an intense preference for Republican positions on cultural issues. The Wall Street Republicans - who tend to be socially liberal or libertarian - put up with Jerry Falwell because they have an intense preference for Republican economic policies. The problem is that it's very hard to find a candidate who can straddle the line.

Think of the GOP as a corporation with two huge, well-financed, well-informed groups of shareholders. The CEO needs to be someone who is acceptable to both camps, which is difficult because the camps have such different views on cultural issues. Most potential CEOs (or presidential candidates) cannot satisfy both camps. Pat Robertson and most of the other cultural warriors are simply too scary and too backwards for the Wall Street types. Similarly, people like Dole and Bush I smell too much like a socially liberal country club for the Buchananites.

That's why Bush II was perfect, even though he had no experience. In fact, his inexperience may have allowed both GOP blocs to think they could manipulate him. In 2000, Bush II seemed to be sufficiently religious to be acceptable to a large bloc of evangelicals. Bush II was also a Texas good ol' boy businessman. With the Bush name and the East Coast education, the Wall Street types knew that they weren't handing the party over to Jerry Falwell. Bush's cloudy vague campaign slogans gave both camps reason to believe that not only was he one of them, but that he would be acceptable to the other camp too. Remember too that both sides hated Clinton, so both blocs might have given Bush II the benefit of the doubt. And it's possible that his inexperience allowed both sides to read what they wanted to read into the ambiguous meaningless platitudes he uttered.

Bush II is now in a major pickle. Both sides feel like he's betrayed them. And to some extent, he has. But Bush's bigger problem is that the Republican Pary is an incoherent coalition that cannot possibly produce a leader who can satisfy both camps.

Sunday, February 22, 2004

One of the central tenets of the Republican faith is a belief in “limited government.” If you asked the average person on the street what it means to be conservative, that person would inevitably respond that conservatives believe in low taxes and limited government. And I suspect that when conservatives reflect on why they label themselves “conservative,” they honestly and sincerely think, “Because I believe in low taxes and limited government.” This economic position maintains and solidifies a Republican coalition that I believe could not exist without the great unifying theme of low taxes and limited government spending. There’s a problem, though, with this economic position - it’s an utter fantasy. Americans don't want limited government, they want big government, as their actions make clear.

Let me perfectly frank, as I think there are few things more essential for Americans to understand. There is no such thing as “limited government” in America. For the overwhelming majority of Americans, there is also no real debate about whether they want “limited government” or “big government.” They want big government. The current debate between limited government and big government is a complete sham. It is merely a pretext for the real debate – What types of big government services do people want?

To see why, let’s look back to the 2002 federal budget. It’s not the sexiest topic imaginable, but it clearly shows what I’m talking about. In 2002, America spent about 2.1 trillion dollars. Approximately two–thirds of the $2 trillion (1.3 trillion) represented the so-called “mandatory spending” - Social Security, Medicare, Medicaid, and interest payments on the debt. As Gingrich learned, proposing to cut any of these programs is political suicide. So two-thirds of the money we spend every year is never even debated.

All of the debates about limited versus big government are thus confined to the remaining one-third - the discretionary spending, which represents about $734 billion. But don’t be fooled - nearly half of this amount ($345 billion) went to defense spending, which is equally un-cuttable. When you combine defense spending with the mandatory spending, the total is about 81% of our total budget. If you throw in education spending (which is as sacrosanct as defense and mandatory spending), then 83% of our federal budget is not even up for debate each year.

So, of the $2 trillion dollar federal budget, only $335 billion is really up for grabs. Even if Congress voted to cut all $335 billion from the budget, we would still be living under a very, very “big” government. And as we have seen, no one wants to cut any of the $1.7 trillion, or at least none have the political courage to say so.

But cutting the entire $335 billion is also unrealistic politically. This money (representing around 17% of the budget) includes all the discretionary funds allocated to the Departments of Justice, State, Homeland Security, Labor, Agriculture, Commerce, Energy, Housing and Urban Development, and Veterans Affairs – to name a few. This money also funds agencies like the EPA and important branches of governments like, oh say, the judiciary. Even if there are conservatives who want to make some cuts in these programs, the size of any cuts would be limited both by the needs of the federal government and by political reality.

The point here is that only a tiny, miniscule fraction of the federal budget is ever up for debate from year to year. I certainly don’t mean to say that small cuts would not have serious consequences. They would. My point is that small cuts (which are the only possible kind) will not usher us into an age of “limited government.” Not by a long shot. What the cuts will do is allow upper-class people to save some money on taxes at the expense of programs that serve people with less money.

When Republicans clamor for budget cuts, they often argue that the cuts are necessary because we need “limited government.” This is a complete sham, though I believe that many conservatives are sincere in their convictions. It’s a sham because the budget cuts they want have absolutely no significant effect on size of our total federal budget. Instead, the real debate is over what types of government services Americans want. Republicans say they want small government, but they favor enormous levels of spending for Social Security, Medicare, Medicaid, veterans’ benefits, interest payments on the debt, defense, education, as well as basic funding for other important federal agencies. This is essentially the entire budget and it’s a really really big sum of money.

I cannot stress this point enough. When conservatives state that they favor limited government, what they are actually saying is that they favor one type of federal spending over another type. The genius is that they have framed the debate in terms of “big” versus “limited” government. The spending preferences of liberal Democrats are labeled “big government,” while the spending preferences of conservatives go unnoticed. Regardless of the reality that Republicans also support big government and big spending (with somewhat different priorities), Americans still seem to believe that Republicans favor limited government. And what's truly horrible is that this illusion has caused Americans to vote for tax cuts (in the name of "limited government"), while simultaneously refusing to swallow the spending cuts that must accompany them if America is to avoid an Argentine-style collapse. You must either take Reagan or reject Reagan. But to only take half of Reagan is the worst of all possible worlds. If Bush is going to cut taxes, then he needs to slash entitlements too. Or, he needs to keep the entitlements and raise taxes. Both policies have their problems, but both are at least coherent, unlike the policies we have today, which involve massive cuts accompanied by not only a refusal to cut spending, but a commitment to vastly increase spending (see, e.g., the new half a trillion dollar - and counting - Medicare bill). Again, take Reagan or leave him. But don't just take half of him because that's a fiscal disaster, especially when you think about the retiring Baby Boomers.

In short, the Republican narrative of “limited government” is wrong because people actually want so-called big government whether they realize it or not. They want it, but they don't want to pay for it. The challenge for progressives is to redefine the terms of the debate. When the question is posed at a very general level whether people are for “big” or “limited” government, they will obviously choose the latter. Yet, if the question can be made more specific and concrete, I suspect that people would choose so-called “big” government. Here’s an imaginary conversation that illustrates my point:

Q: So do you prefer big or limited government?
A: Limited government. That’s why I vote Republican.
Q: Can you tell me exactly what government spends money on that is so wasteful?
A: Not really, I just think it’s too big and big government doesn’t work.
Q: So you’re for cutting the current spending levels Social Security, Medicare, and Medicaid?
A: No.
Q: What about defense?
A: No way.
Q: Are you for cutting education, or defaulting on our interest payments?
A: No.
Q: That’s almost 83% of the budget, assuming everything else gets cut. Are you opposed to at least some levels of funding for the Departments of State, Justice, Homeland Security, Health and Human Services, Labor, Housing and Urban Development, and all the other administrative departments and agencies?
A: Maybe we could cut some of their funding, but we should definitely fund them.
Q: So, are you for big government or limited government?
A: Limited government.
Q: But you support the funding levels for all these programs I listed?
A: Yes.

[Update: Jonathan Chait has some more numbers regarding the deficit and the impending fiscal meltdown (if we don't act, soon) at the New Republic. Very informative - you can get it here. Chait provides further support for many of the arguments that I made in this post. The arguments were my own, however, and you can see from the post dates that I posted mine first and had no idea he would be writing on this subject.]

"THANK A LIBERAL" DAY

Here's the extent of the RNC's creativity in attacking the various presidential candidates:

Wesley Clark - A Flip-Flopping, Liberal Clinton Crony With A Penchant For Whoppers And Poor Foreign Policy Decisions.Dennis Kucinich - A Flip-Flopping Liberal ExtremistAl Sharpton - A Liberal Democrat Out Of Touch With AmericaDick Gephardt - An Inside-The-Beltway Liberal Who Has Been Tried, Tested, And RejectedJohn Kerry - Kerry: Dukakis's Lt. Gov. Who Votes Lockstep with Ted KennedyHoward Dean - An Ultra-Liberal On Social Issues Who Is Out Of The Mainstream And Wrong For AmericaJohn Edwards - An Unaccomplished Liberal In Moderate Clothing And A Friend To His Fellow Personal Injury Trial Lawyers.

Pretty funny right? But as I explained in my earlier rhetoric post, these are all pathos-based argument, no logos. In other words, the goal is not to argue rationally. The goal is stir up raw emotions by identifying each candidate with a disfavored concept - which in this case is "liberalism." There are major problems with this kind of reasoning. First, if the response to each candidate is the exact same (i.e., "liberal," "liberal," "ultra-liberal"), that is a strong indication that there is no real rational evaluation going on. They're just hoping that (1) people hate liberals and (2) that people will see the given candidate as a liberal. But here's my question - why is it so bad to be a liberal? It seems like most of our nation's most treasured actions and policies were often inspired by dreamy-eyed liberals, who fought and fought and eventually won people over.

Did you like the American Revolution? Thank a liberal. Are you glad slavery was ended? Thank a liberal. Do you admire the way that abolitionists bravely challenged legalized slavery, even though they were hated and despised and called "extremists." If you agree with what they fought for, then you're agreeing with liberals, even "ultra-liberals."

Do you like Social Security? Are you comforted to know that you will never have to face starvation or extreme poverty when you are a senior citizen? Thank a liberal. Do you think the minimum wage was a good thing? Do you like having the weekend? Thank a liberal. Do you like national parks? Do you like knowing that the federal government will protect the air you breathe and water you drink? Thank a liberal.

Did you favor ending segregation? Are you glad that America adopted the Civils Rights and Voting Rights bills in the early 1960s. Thank a liberal. Did you agree with the efforts of the early women suffragists? Are you glad that women can now vote? Thank a liberal.

Do you favor Medicare? Does it comfort you know that your grandparents will not be denied medical services? Thank a liberal. Do you favor Medicaid? Do you think it's an obligation of a just society to provide medical care to its poorest citizens? Thank a liberal.

Do you like free education? Are you glad that all children - no matter how poor - have a right to an education? Thank a liberal.

It seems to me that all of these policies were opposed in their day by tactics remarkably similar to what are being used today. When liberals advocated new policies - say, women's suffrage or free education - society laughed at them, called them extremist, and demonized them. It's funny how quickly things change. For example, people called Social Security "socialist" in its day, and now no politican dares to touch it.

My point is that if liberals have been right so many times, and if their efforts have been responsible for some of the programs and actions that America most values and is most proud of, tell me again why it's so bad to be a liberal?

Saturday, February 21, 2004

SATURDAY REPEAT

I've decided to take Saturdays off from the blogosphere. But rather than leaving you with nothing, I've decided to use Saturdays to repost some of my old writings that newer viewers may not have read. With gay marriage in the news, I thought it would appropriate to repost my "Yankophobia" post from Jan. 22

At one point in the debate tonight, the moderator mentioned that his friend (or relative) said that "we [the Dems] don't need another Northeasterner on the ticket." And we all remember the recent anti-Dean commercial where the wholesome Iowa elderly couple told the "latte-drinking, sushi-eating, volvo-driving, New York Times-reading . . . left-wing freak show" to go back to Vermont. To me, the moderator's question and the anti-Dean commercial provided further proof that a new form of political racism is developing. Until I think of a better word, I'll call it Yankophobia - racism against the Northeast, or against those who are perceived to have "northeastern" sensibilities. While many have noticed this, few have noticed the economic dimensions and benefits of Yankophobia. Let me explain.

To me, the sentiments displayed in both the moderator's question and in the anti-Dean commercial are indistinguishable from what I call "political racism." By political racism, I'm referring to the demonization or demagoguing of a particular numerical minority, followed by a subsequent attempt to link a political opponent or movement with that minority. When you view it from this general level, you'll see that "racism" is actually a subset of the broader phenomenon I'm describing. And the phenomenon itself is the act of stirring up animosity and resentment toward a numerical minority whether that minority be differentiated by race, sexual orientation, or even religious belief. But most critically, political racism (or bigotry if you prefer) is most effective and most necessary when it is used to divide a group whose individuals share the same economic self-interest.

Sadly, southern politics provide a very clear example of what I'm talking about. Throughout the history of the South, poor whites and blacks always had more in common with each other (in terms of economic self-interest) than with the aristocratic, white leaders. These leaders maintained their power by dividing the potential coalition through the use of race. And it worked - and it continues to work (See the 2002 races in Georgia and South Carolina, along with the 2003 Mississippi governor's race - all three of which demagogued the Confederate flag issue).

Today (though in a more subtle way), Yankophobia is working in the same way. And the reason why Yankophobia is so necessary, and the reason why some conservatives are so passionate about stirring up resentment toward the northeastern "latte-drinkers," is because the latte-drinkers advocate policies that are in the economic self-interest of America's working classes. If the "latte-drinkers" had their way, there would certainly be more efforts to provide better health care, to offer fully funded educaton mandates, to create more job initiatives, to avoid deficits that threaten future programs (which help the non-rich the most), and most critically, there would be no tax cuts that go primarily to most well-off segments of the country at the expense of programs that help the least well-off (and anyone who can add must concede these taxes went primarily to the wealthy -- we can argue about the economic wisdom of them - but it's not even possible to deny the wealth-favoritism of the tax cuts). The sorts of policies that the latte drinkers favor would be of the most benefit to the working and middle classes of America. Simply put, latte drinkers are more likely to support using government to promote economic well-being - see, e.g., Social Security, Medicare, Medicaid, federal education grants - all Democratic New Deal coalition initiatives.

So, if working class southerners and midwesterners ever realized that the economic policies favored by the latte drinkers would actually help them the most (and would help them even more than they would help latte drinkers themselves, who are voting against their own economic self interest in a sense), the Republican coalition of Wall Street libertarians and rural social conservatives would be split down the middle. So, Republicans have resorted to what other groups have resorted to in the past -- demonizing the numerical minority who threatens their hold on their political coalition.

That's why you hear so many references to "east coast liberal" in politics, and especially southern politics (where white poverty is higher). That's why Bush flies to Kentucky and Mississippi before the governor's race and praises the candidate's values. It's a not-so-subtle indictment of the values of latte drinkers. That's why they need to stress how much latte drinkers love criminals, and tree huggers, and gay people. Demonizing the Northeast (which is just a proxy for latte drinker sensibilities) allows the Republican coalition to continue to exist. In my opinion, Yankophobia has grown stronger in the past 5 years or so just because it's becoming more obvious how little Republican policies help the middle classes economically.

It will be interesting to see if this continues in the general election. If Kerry gets the nomination, you can bet that we'll hear the word "northeast" thrown around over and over again. But remember, the desire to create cultural resentment is driven by economics.

Friday, February 20, 2004

CRACK OPEN THE CHAMPAGNE AT THE WHITE HOUSE

TODAY'S MUST-READS

Billmon's Whisky Bar (which I think is the best blog on the Internet) has two absolute must-reads. The first one relates directly to the rhetoric post I wrote last night (see below). Billmon argues that the Democrats need a new rhetorical message and should adopt "economic patriotism." I think that's a great idea. Billmon's second post offers a potential long-term demographic strategy of the Democrats, which could gain them a permanent majority. That strategy is to systematically confine Republicans within the Pat Robertson wing of the party. Billmon speculates that the religious wing may ask for so much that it consigns itself to permanent minority status. That's why the GOP is making a serious long-term error by pushing the FMA - even if it helps in 2004, it's ultimately going to haunt them, just like Pete Wilson's anti-immigrant policies caused the Republicans to lose California. And the rise of Pat Robertson is also why Northeastern Republicans are a dying breed. The other must-read is Fred Kaplan's "The Tragedy of Colin Powell" on Slate. I agree with everything in that article - Powell should resign and embarrass the administration that has opposed everything he's ever fought for, and, in the process, ruined his career maliciously.

Thursday, February 19, 2004

KERRY, EDWARDS, AND ARISTOTLE - The Importance of Rhetoric

It's clear that both Kerry and Edwards have decided to make economic populism a central theme of their respective campaigns. As you may remember, Gore did the same thing in 2000 with his "People versus the Powerful" theme. And as I have pointed out before (see post here), the message will be a loser for Kerry, just as it was for Gore. So here's the problem that many readers have pointed out - I've been suggesting that Edwards has a better message than Kerry. Edwards, however, has adopted the exact same economic populist message that Kerry has. So how can I say that Edwards's message is better? And furthermore, why should Democrats think the message will work any better for Edwards than it did for Gore? It's a good question, and it's been troubling me. I mean, both candidates are saying essentially the same thing. But at long last, I think I have the answer - it's all about rhetoric. Any by "rhetoric," I'm referring to the forms of classical rhetoric as defined by Aristotle. By understanding some basic principles of classical rhetoric, you can understand why the message might work for Edwards and why it probably won't work for Kerry.

Rhetoric is simply the art of speaking or writing effectively and persuasively. Long ago, Aristotle identified three different types of rhetoric - ethos, logos, and pathos. Each of the three types of rhetoric is meant to persuade the audience, though each type goes about it in a different way. Ethos is an appeal based on the character of the speaker. When Kerry talks about his Vietnam heroism, he is making an ethos-driven argument. Logos is an appeal based on logic and reason. This type of rhetoric should be familiar to everyone. Finally, pathos is an appeal based on emotion, and it can be quite powerful. When Bush invoked September 11 and WMDs as a justification for invading Iraq, he was relying heavily on pathos-based arguments because he was appealing to people's fears and anger. The best rhetoricians can mix and match all three. Lincoln was the best that I know - just read his Second Inaugural Address - especially if you're in the Lincoln Memorial where the speech is etched on the walls. It's an amazing piece of rhetoric that includes healthy doses of ethos, logos, and pathos - and not a little poetry. And it was from a real "war president" - (By the way, real "war presidents" don't need - and don't desire - to point out that they're "war presidents." The more I think about that blatant politicization of the war, the more upset I get - but that's a different post).

With that in mind, let's return to the two Democratic candidates. Obviously, the purpose of any given candidate's message is to persuade people to vote for that candidate. Thus, the economic populism theme is intended to persuade voters. And so, both candidates are using economic populism as a form of rhetoric. But here's the key - the two candidates are using different combinations of rhetorical styles. In other words, even though they're both preaching the exact same message, they are not using the same types of rhetoric.

Take Kerry. His economic populism is too heavy on the logos and too light on the pathos. His populist messages always get drowned in his nuanced, professorial logos-inspired speeches. And when he does use pathos, he appeals (like Bush always does) to base emotions like fear and anger. Kerry's economic populism is angry - it lashes out at the big HMOs and drug companies. That was Gore's problem too. The message is fine, but the rhetoric was bad. Gore too was guilty of appealing only to people's anger and resentment when he lashed out at the powerful. Also, unlike in his strong ethos-inspired Vietnam rhetoric, Kerry abandons ethos (appeals to character) in making his populist arguments.

Compare that with Edwards. With him, it's all pathos and ethos. To be sure, he throws in the necessary logos. But Edwards understands what Reagan understood - pathos and ethos beat logos any day of the week. Let's break Edwards's populism down into the different rhetorical categories. First, he always uses ethos effectively by stressing that he grew up poor and that he shares the values of working class Americans. Ethos is all about establishing trust. Edwards wins over audiences who have been skeptical of Democrats lately because he gets them to trust him with his powerful ethos-inspired rhetoric. He doesn't seem like a snobby East Coast liberal - he seems like someone they can trust.

He is also extremely talented at delivering pathos-inspired arguments. Clinton was the master of using pathos rhetoric, but Edwards ain't too shabby. Look at the following statement from the South Carolina debate:

I've seen mills close, I've seen what it does to communities, I've seen what it does to families.

And all this talk among politicians in Washington about, "We're going to get you job retraining program, we're going to make sure that we give you the transportation to get to a new job" - say that to a 50- or 55-year-old man who's been supporting his family his entire life working in a mill.

I think the truth of the matter is, we need to start by recognizing the pain. And not just the economic pain -- the pain that these families are in.

That's powerful stuff. Edwards's other populist arguments - the "Wealth to Work" and the "Two Americas" themes are definitely pathos-inspired, but they're not appeals to anger. They are appeals to dignity, pity, and compassion. Both of these themes affirm the basic dignity and competence of the working classes, which is something Gore's does not do (and that's typical of the "East Coast" mentality that I myself am guilty of). Gore and Kerry's message is implicitly condescending, though not intentionally. Their message is "You are weaker than these people who are screwing you and I'll punish them for you." That's not the right kind of pathos. Edwards says, "I value those who work and we're going to try to make America value working people too." Again, it's not that different logically, but it's a huge difference emotionally. It's not condescending and it's not even angry. It's critical of the "Powerful," to be sure, but the tone is different than Gore and Kerry's. It's saying, "You work hard and we're going to remove these obstacles and let you shine." Kerry makes it sound like the working classes are on the losing team. His populism doesn't exude hope (from a rhetorical perspective), even though he's advocating almost everything that Edwards is (even on trade).

So that's my answer to the question I posed above. The message will work for Edwards because he understands rhetoric better. Emotion beats logic always. And positive emotion usually beats negative emotion. Again, look at 2000. Gore's theme was the "People vs. the Powerful." Bush's was "Prosperity with a Purpose." Whose message do you think sounds more hopeful? Bush is good at the pathos too, but his strength comes from the dark side of the force - fear, anger, cultural animosity toward minorities and gays, resentment about paying taxes, and on and on. Bush and the GOP appeal to the worst in us. And that's why I think Edwards would beat him. And if Kerry could do a quick refresher on rhetoric, he could overcome the dark side of the force too. Just remember the wisdom of Yoda: